Allowed

State Bank of Patiala v. Bimla Rishi & Ors.

Punjab & Haryana HC25 Mar 2011CR/1968/2011

Case brief

AI extract

What is this about?

This revision petition challenged orders striking off the petitioner-sanctioned defense for failure to file a power of attorney despite counsel's appearances and a recall application which was later dismissed. The high court held striking down defense was impermissible.

What did the court decide?

Impugned orders dated 05.12.2009 and 11.12.2010 set aside; trial court directed to proceed in accordance with law.

State Bank of Patiala Vs Bimla Rishi… — Civil Procedure and Limitation | Punjab & Haryana HC (2011)

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Civil Revision No. 1968 of 2011 1

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Civil Revision No. 1968 of 2011 (O&M) Date of decision:- 25.03.2011

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State Bank of Patiala

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....Petitioner

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Vs.

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Smt. Bimla Rishi and others

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....Respondents

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CORAM: HON'BLE MR. JUSTICE A.N. JINDAL

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Present:Mr. D.K.Singal, Advocate, for the petitioner.

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A.N. JINDAL, J (ORAL)

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Notice of motion.

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Mr. Hitesh Kaplish, Advocate, accepts notice on behalf

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of the respondents.

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This petition assails the order dated 05.12.2009, whereby the defence of the defendant-petitioner (hereinafter referred to as 'the petitioner') was struck off and the order dated 11.12.2010, whereby an application for recalling of the aforesaid order was also dismissed.

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Brief facts in the background of the case are that respondent No.1 had filed a suit for declaration to the effect that she is owner of the property comprising of a shop on the ground floor and a room on above said shop on the first floor, situated at Bahera Road, Patiala and the sale by way of auction of the above said property by the petitioner-State Bank of Patiala in favour of

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Civil Revision No. 1968 of 2011 2

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respondent No.5 is illegal, null & void and does not affect the rights of respondent No.1. The petitioner, who has been impleaded as defendant No.4 in the suit, put its appearance through Shri B.S. Sodhi, Advocate and moved an application on 02.04.2009 for rejecting the plaint in view of Section 34 of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest, 2002. Thereafter, the suit filed by respondent No.1 was adjourned from time to time for service of the unserved respondents and the following orders were passed:-

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“Present: Counsel for plaintiff. Counsel for defendant No.4.

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Def. no. 5,2 & 3 not served. Be summoned again for 1-8-09. Def. no. 5 served through Munadi and def. no. 2 & 3 be summoned through ordinary process, i.e. RC/AD. Def. no. 4 is directed to file POA on that date. Reply to the application by appearing defendant be also filed on the dated fixed.

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Sd/CJ(JD) 9-5-09

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Present: Counsel for plaintiff. Counsel for Defendant No.4.

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File taken up today as I was on leave on

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01.08.2009. Remaining defendants not served. Be summoned for 16.09.2009 as per previous order. POA be also filed by defendant no. 4 and reply be also filed on that date.

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Sd/Ravi Inder Kaur 03.08.2009

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Present: Counsel for plaintiff. Counsel for def. no.4.

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Remaining defendants not served. Be

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served as per previous order. POA also be filed on that date on behalf of defendant alongwith reply.

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Civil Revision No. 1968 of 2011 3

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Sd/Ravi Inder Kaur CJJD/16.09.2009

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Present: Counsel for plaintiff.

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POA and reply on behalf of def. no.4 not

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filed till today although Sh. B.S. Sodhi appeared on behalf of def. no.4 on 2.4.09, hence defence on behalf of def. no. 4 is struck off. Remaining defendants be served for 11.1.2010.

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Sd/Ravi Inder Kaur CJJD/05.12.2009”

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However, aggrieved by the order dated 05.12.2009,

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the petitioner moved an application for recalling the same, which was dismissed on 11.12.2010. Therefore, both the orders have been challenged by the petitioner.

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Arguments heard.

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On examination of the aforesaid orders, it transpires that though Mr. B.S. Sodhi, Advocate, had put in appearance on behalf of the petitioner, but he had not furnished the power of attorney. Order dated 02.04.2009 indicates this fact, which is reproduced as under:-

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“Present: Sh. A.S. Bhullar counsel for plaintiff. Defendant no.5 served but not appeared.

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He is ordered to be served through Munadi on filing PF. Defendant no. 2 & 3 not served. They be again served as per previous order. Defendant no.4 not filed any POA but Sh. Baljit Singh Sodhi appeared on behalf of defendant no.4 and filed application u/o 7 Rule 11 (A) & (D), copy supplied. Defendant no. 4 is directed to file POA on next date of hearing.”

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Though, Shri Baljit Singh Sodhi, Advocate, appeared on behalf of petitioner for four times, but he did not file any power

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Civil Revision No. 1968 of 2011 4

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of attorney till 05.12.2009. Ultimately, the Court vide order dated 05.12.2009 struck off the defence of the petitioner for want of filing of the power of attorney. Surprisingly, the Court appears to have deviated from the provision of law, which suggest the Court as to what is to be done in such a situation. Actually the petitioner or his representative never appeared in the Court, but Shri B.S. Sodhi, Advocate, appeared and sought time to file power of attorney on his behalf. In any case, if he had not filed the power of attorney, then at the most the Court could proceed against the petitioner considering him to be absent in the case. But, by no stretch, the Court could struck off the defence. Thus, the order in such a situation striking off the defence, is palpably wrong and requires to be disturbed.

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By taking the case from another angle, the Court while considering Shri B.S. Sodhi to be the counsel for the petitioner, could not strike off the defence, but for failure of the petitioner to file the power of attorney in spite of the Court's direction, it could impose certain costs upon the petitioner. Such situation was dealt with in a case Bihar State Electricity Board and others Vs. Bhowra Kankanee Collieries Ltd. and another, AIR 1982 Supreme Court 60, wherein it was held as under:-

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“6. Undoubtedly, there is some negligence but when a substantive matter is dismissed on the ground of failure to comply with procedural directions, there is always some element of negligence involved in it because a vigilant litigant would not miss complying with procedural direction more so such a simple one as filing Vakalatnama. The decision in the appeal on merits, (sic) appellants will pay the costs of the respondents.”

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Civil Revision No. 1968 of 2011 5

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As such, while examining the case from every angle, the order does not stand to scrutiny of the legal canons.

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Resultantly, the present petition is accepted, the impugned orders dated 05.12.2009 as well as 11.12.2010 are set aside and the trial Court is directed to proceed in accordance with law.

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25^th of March, 2011 ajp

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(A.N.JINDAL) JUDGE

State Bank of Patiala v. Bimla Rishi & Ors.

Case brief

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State Bank of Patiala v. Bimla Rishi & Ors.

Case brief

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